109 HR 1266 IH: Abandoned Hardrock Mines Reclamation Facilitation Act U.S. House of Representatives 2005-03-10 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 1st Session H. R. 1266 IN THE HOUSE OF REPRESENTATIVES March 10, 2005 Mr. Udall of Colorado (for himself and Mr. Salazar) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To facilitate the reclamation of abandoned hardrock mines, and for other purposes.

1.

Short title, findings, and purpose

(a)

Short title

This Act may be cited as the Abandoned Hardrock Mines Reclamation Facilitation Act. (b)

Findings

The Congress finds the following: (1)Through various laws and policies, including the Act of May 10, 1872 (commonly known as the General Mining Law of 1872; 30 U.S.C. 22 et seq.), the Federal Government has encouraged the development of gold, silver, and other mineral resources, especially in the western States, and development of these resources has helped create a strong economy and provided needed materials for many critical products and services. (2)However, historically mining activities have occurred in recurrent cycles of boom followed by bust, with many mines left inactive or abandoned at the end of each cycle. (3)As a result of this history, the United States has been left an unwelcome legacy of inactive or abandoned mines, including thousands of such mines in the western States. (4)Many of these inactive or abandoned mines pose safety hazards to the public, and the drainage and runoff from such mines has damaged thousands of stream miles to the detriment of water quality, particularly in several western States. (5)The environmental cleanup of these inactive or abandoned mines is hampered by the fact that in many cases, a responsible party for the mine site cannot be identified or lacks the economic resources to respond to the adverse environmental effects of a site, while other parties have been reluctant to undertake remedial actions because of the possibility that they would be considered to have assumed liability with regard to the site. (6)It is in the national interest to facilitate the cleanup of inactive or abandoned mines through appropriate legislation that reduces this obstacle. (c)

Purpose

The purpose of this Act is to facilitate cleanup of inactive and abandoned mine sites by limiting the potential liability of parties undertaking to carry out such cleanup. (d)

Scope

Nothing in this Act is intended to facilitate new mining activities or any reduction in liability associated with any current or new mining or processing activities.

2.

Abandoned or inactive mined land waste remediation permits

Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end the following: (r)

Abandoned or inactive mined land waste remediation permits

(1)

Definitions

In this subsection, the following definitions apply: (A)

Identifiable owner or operator

The term identifiable owner or operator means a person or entity— (i)that is the current owner or operator or that is or was responsible for the activities at abandoned or inactive mined land that created conditions that cause or contribute to the discharge of pollutants from the abandoned or inactive mined land; and (ii)that is financially capable of compliance with requirements of this section and sections 301 and 302. (B)

Permit

The term permit means an abandoned or inactive mined land waste remediation permit described under paragraph (2). (C)

Remediating party

The term remediating party means— (i)the United States, except with respect to abandoned or inactive mined land located on Federal land; (ii)a State or political subdivision thereof; or (iii)an Indian tribe. (D)

Cooperating party

The term cooperating party means any person or entity, including the Federal Government with respect to abandoned or inactive mined land located on non-Federal land, that implements the practices described in paragraph (3)(B)(viii). (2)

Permits

(A)

In general

The Administrator, with the concurrence of the State in which an abandoned or inactive mine remediation project is proposed or the Indian tribe which owns or has jurisdiction over the land on which a remediation project is proposed, may issue an abandoned or inactive mined land waste remediation permit to a remediating party for discharges associated with remediation activity at any eligible area under this subsection, that modifies the otherwise applicable requirements of any other subsection of this section and of sections 301 and 302. (B)

Delegation

The Administrator may delegate the authority for issuance of abandoned or inactive mined land waste reclamation permits for discharges associated with remediation activities at any eligible area under this subsection to a State that is exercising delegated authority under this section. (3)

Permit process

(A)

Scope

A remediating party may apply for a permit for remediation activities at abandoned or inactive mined land from which there is or may be a discharge of pollutants to waters of the United States. (B)

Remediation plan

A remediating party that seeks a permit shall submit an application for the permit that includes a remediation plan that— (i)identifies the remediating party and any cooperating party with respect to the plan; (ii)identifies the abandoned or inactive mined land addressed by the plan, including a verification that the land is eligible under this Act; (iii)identifies the waters of the United States affected by past mining activities at the abandoned or inactive mined land; (iv)describes the baseline condition of the waters at the time of the permit application (including the nature and extent of any adverse water quality impact and, as applicable, the levels of any pollutant causing the impact); (v)describes the conditions at the abandoned or inactive mined land that are causing adverse water quality impacts; (vi)describes the applicant’s reasonable efforts to identify— (I)current owners, lessees, and claimants of the abandoned or inactive mined land addressed by the plan; and (II)other persons, including mine operators, if any, whose activities at the abandoned or inactive mined land after October 18, 1972, created conditions that cause or contribute to the discharge of pollutants from the abandoned or inactive mined land; (vii)describes the remediation goals and objectives, including the pollutant or pollutants to be addressed by the plan, including actions taken to meet the applicable water quality standards to the maximum extent practicable, but in no circumstances worse than the baseline water condition as described pursuant to clause (iv); (viii)describes the practices, including a schedule and estimated completion date for implementing the practices, that are proposed to meet the applicable water quality standards to the maximum extent practicable, but in no circumstances worse than the baseline water quality as determined under clause (iv), including— (I)in the case of a new remediation project, the preliminary system design and construction, operation, and maintenance plans; and (II)in the case of an existing remediation project, available system design and construction, operation, and maintenance plans and any planned improvements to the projects; (ix)explains how the practices described in clause (viii) are expected to result in the attainment of applicable water quality standards to the maximum extent practicable, but in no circumstances worse than the baseline water quality as determined under clause (iv); (x)describes the monitoring or other forms of assessment that will be undertaken to evaluate the success of the practices during and after implementation, relative to baseline conditions; (xi)describes contingency plans, including the practices to be implemented to achieve the remediation goals and objectives described in clause (vii), for responding to unplanned adverse events; (xii)provides a schedule for periodic reporting on progress in implementing the plan; (xiii)provides a budget for the plan and identifies the funding sources that will support the implementation of the plan, including practices described in clauses (viii), (x), and (xi); (xiv)describes the applicant’s legal authority to enter and conduct activities at the abandoned or inactive mined land addressed by the plan; (xv)demonstrates that there is a covenant obligating future landowners to operate and maintain the property so that all environmental benefits of the project authorized by the permit will be fully realized; (xvi)contains any other additional information requested by the Administrator to clarify the plan and the activities covered by the plan; and (xvii)is signed by the applicant. (C)

Review of application

(i)The Administrator or the delegated State shall— (I)review each application for an abandoned or inactive mined land waste remediation permit; (II)provide to the public notice of and reasonable opportunity to comment on the application; (III)provide an opportunity for a public hearing on the application; and (IV)determine whether the application meets the requirements of subparagraph (B). (ii)If the Administrator or the delegated State determines that an application does not meet the requirements of subparagraph (B), the Administrator or the delegated State shall— (I)notify the applicant that the application is disapproved and explain the reasons for the disapproval; and (II)allow the applicant to submit a revised application. (iii)If the Administrator or the delegated State determines that an application meets the requirements of subparagraph (B), the Administrator or the delegated State shall notify the applicant that the application is accepted. (D)

Issuance

(i)After notice and opportunity for public comment on a permit proposed to be issued, including any additional requirements that the Administrator or the delegated State determines would facilitate implementation of this subsection, the Administrator or the delegated State may issue an abandoned or inactive mined land waste remediation permit to the applicant if the Administrator or the delegated State determines that— (I)relative to the resources available to the remediating party for the proposed remediation activity, the remediating party has made a reasonable effort to identify persons under subparagraph (B)(vi); (II)no identifiable owner or operator exists, except a permit can be issued on Federal land where the only identifiable owner or operator is the Federal Government; and (III)the remediation plan demonstrates with reasonable certainty that the implementation of the plan will meet applicable water quality standards to the maximum extent practicable, but in no circumstances worse than the baseline water condition as described pursuant to subparagraph (B)(iv), taking into consideration the resources available to the remediating party for the proposed remediation activity. (ii)If the Administrator or the delegated State decides not to issue an abandoned or inactive mined land waste remediation permit to the applicant, the Administrator shall notify the applicant of the reasons for not issuing the permit. (E)

Modification

(i)Not later than 120 days after the receipt of a written request by a permittee, the Administrator or the delegated State shall approve or disapprove a modification of a permit. (ii)A permit modification approved by the Administrator or the delegated State under this subsection shall be— (I)by agreement of the permittee and the Administrator or the delegated State; (II)after providing the public notice of, and opportunity for comment and a hearing on, a proposed modification of a permit; (III)in accordance with the standards in subparagraph (D)(i)(III); and (IV)immediately reflected in and applicable to the remediation permit. (4)

Contents of permit

(A)

In general

A permit— (i)shall include a remediation plan approved by the Administrator or the delegated State and any additional requirements that the Administrator or the delegated State establishes under paragraph (9); and (ii)shall provide for compliance with and implementation of the remediation plan and any other requirements described under clause (i). (B)

Review

A permit shall establish a schedule for review, by the Administrator or the delegated State, of compliance with the conditions and limitations of the permit. The Administration or the delegated State shall inspect each site subject to a remediation permit at least annually. (C)

Compliance with other limitations

A permit shall require the remediating party to comply with any applicable provisions of this subsection and other subsections of this section and with sections 301 or 302 to the maximum extent practicable in a manner specified in the permit. (5)

Failure to comply

Failure of a remediating party operating under an approved permit to comply with any condition or limit of the permit related to water quality shall be considered a violation subject to enforcement pursuant to sections 309 and 505 of this Act. (6)

Termination

(A)

In general

The Administrator or the delegated State shall terminate a permit if— (i)the remediating party successfully completes the implementation of the remediation plan; or (ii)the discharges covered by the permit— (I)become subject to a permit issued under the other subsections of this section for development that is not part of the implementation of the remediation plan; and (II)the remediating party seeking termination of coverage, and any party cooperating with the remediating party with respect to the plan, is not a participant in the development. (B)

Unforeseen condition

The Administrator or the delegated State shall terminate a permit if— (i)an event or condition is encountered that was not contemplated or designed for by the remediation plan and is beyond the control of the remediating party; and (ii)the Administrator or the delegated State determines that remediation activities under the permit have resulted in surface water quality conditions, taken as a whole and with reference to the designated uses of the waters, that are not worse than the baseline water condition as described pursuant to paragraph (3)(B)(iv). (C)

No enforcement liability

(i)Subject to clause (ii), if a permit is terminated under subparagraph (A) or (B), the remediating party, or a cooperating party with respect to the plan, shall not be subject to enforcement under section 309 or 505 for any remaining discharges from the abandoned or inactive mined land described in the permit. (ii)This subparagraph does not limit any liability of any person, other than the remediating party or a cooperating party. (7)

Limitations

(A)

Emergency powers

Nothing in this subsection limits the authority of the Administrator under section 504. (B)

Prior violations

(i)Nothing in this subsection precludes actions under section 309 or 505 or affects the relief available in actions under those sections, with respect to violations of this section, or sections 301(a) or 302, that occurred prior to the issuance of a permit under this subsection. (ii)If a permit covers remediation activities implemented by the permit holder prior to the issuance of the permit, clause (i) shall not apply to an action that is based on conditions resulting from those remediation activities. (C)

Obligation of States and Indian tribes

Except as expressly provided, nothing in this subsection limits any obligation of a State or Indian tribe under section 303. (D)

Other development

Any development of abandoned or inactive mined land (including mineral exploration, processing, beneficiation, or mining), including development by a remediating party or any cooperating party with respect to the plan, not specifically described in a permit issued by the Administrator or the delegated State under this subsection shall be subject to this Act (other than this subsection). The commingling of any other discharges or waters with the discharges or waters subject to the remediation permit cannot limit or reduce the liability of persons associated with the other waters or discharges. (E)

Recoverable value

A remediating party may sell or use materials recovered during the implementation of the plan, but the proceeds of any such sale must be used to defray the costs of remediation of the site addressed in the permit or the costs of remediation of other abandoned or inactive sites used for mining hardrock minerals. (F)

State certification

In so far as this subsection may relate to water quality standards, section 401 certification shall not apply to permits under this section; except that, in any case in which section 401 certification would otherwise be required, no permit shall be issued under this subsection without the concurrence of the State in which the discharge is located. (8)

Liability of other parties

Nothing in this subsection, including any result caused by any action taken by the remediating party or a cooperating party, limits the liability of any person other than the remediating party or a cooperating party, under this Act or any other law. (9)

Regulations

(A)

In general

Except as provided in subparagraph (B), not later than 1 year after the date of enactment of this subsection, the Administrator, in consultation with Secretary of the Interior and the Secretary of Agriculture and State, tribal, and local officials and after providing the public with notice of, and opportunity for comment and a hearing on, regulations proposed to be promulgated, shall promulgate regulations establishing generally applicable requirements for— (i)remediation plans described in paragraph (3)(B); and (ii)as considered to be necessary by the Administrator, other paragraphs of this subsection. (B)

Specific requirements before promulgation of regulations

Before promulgation of regulation pursuant to subparagraph (A), the Administrator may establish, on a case-by-case basis, after notice and opportunity for public comment, specific requirements that the Administrator determines would facilitate implementation of this subsection in an individual permit issued to the remediating party. (10)

Funding

(A)

Eligibility for section 319 grants

Implementation of a remediation plan under a permit issued under this subsection shall be eligible for grants under section 319(h). (B)

Other grant for implementation of remediation plans

Subject to the availability of appropriated funds, the Administrator also may make a grant, without regard to any requirements in section 319(h) concerning the availability of State or other matching funds, to any remediating party for implementation of a remediation plan under a permit issued under this subsection. (11)

Report

(A)

In general

Not later than 1 year before the date of the termination of permitting authority specified in paragraph (12), the Administrator shall submit to Congress a report on the activities authorized by this subsection. (B)

Contents

The report required under subparagraph (A), at a minimum, shall— (i)identify each permit, and associated remediating party, issued under this subsection; (ii)identify the abandoned or inactive mine land addressed by each permit (including the waterbodies and baseline water quality of the waterbodies affected by the land); (iii)summarize the remediation plan associated with each permit issued under this subsection, including— (I)the goals and objectives of the plan; (II)the plan budget; and (III)the practices to be employed according to the plan to reduce, control, mitigate, or eliminate adverse water quality impacts; (iv)identify the status of the implementation of each remediation plan associated with each permit issued under this subsection (including specific progress that permitted remediation activities have made toward achieving the goals and objectives of the remediation plan); (v)identify and describe any enforcement action taken by the Administrator or any civil action brought by a citizen concerning a permit issued under this section (including the disposition of the legal action); and (vi)include recommendations by the Administrator for any modifications to this subsection, or the regulations promulgated under paragraph (9) to implement this subsection, that would facilitate the improvement of water quality through the remediation of abandoned or inactive mined land. (12)

Termination of permitting authority

The authority granted to the Administrator or the delegated State under this subsection to issue an abandoned or inactive mined land waste remediation permit terminates on the date that is 10 years after the date of enactment of this subsection. (13)

Eligible areas

(A)

Sites

Permits under this subsection shall be issued only for reclamation of lands and waters— (i)located in States that include lands subject to the general mining laws; (ii)that were but are no longer actively mined for hardrock minerals (and not in temporary shutdown) as of the date of enactment of this subsection; (iii)that are not identified for remedial action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) and for which there is no identifiable owner or operator for the mine or mine facilities; (iv)that are not designated for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.); and (v)for which no evidence exists that the lands contain minerals which could economically be extracted through the mining, reprocessing, or remining of such lands. (B)

Definitions

In this paragraph, the following definitions apply: (i)The term hardrock minerals means any mineral other than a mineral that would be subject to any of the following if located on land subject to the general mining laws: (I)The Mineral Leasing Act (30 U.S.C. 181 et seq.). (II)The Geothermal Steam Act of 1970 (30 U.S.C. 100 et seq.). (III)The Act of July 31, 1947, commonly known as the Materials Act of 1947 (30 U.S.C. 601 et seq.). (IV)The Mineral Leasing Act for Acquired Lands (30 U.S.C. 351 et seq.). (ii)The term general mining laws means those provisions of law that generally comprise chapters 2, 12A, and 16 and sections 161 and 162 of title 30, United States Code..